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2022 (11) TMI 950 - AT - Service TaxDemand beyond the scope of the Show Cause notice (SCN) - Extended period of limitation - wilful suppression of facts - non-payment of service tax - appellant preferred appeal before the Commissioner (Appeals) inter alia on the ground that the demand is not sustainable for want of classification of the service - eligibility for SSI exemption under Notification No. 6/2005-ST - HELD THAT:- The appellant had taken suo moto registration in November 2016 and had started making compliance by filing Return and depositing admitted tax w.e.f. 01/10/2016. Further, the appellant have maintained proper records of its transactions and turnover. They have also filed their IT-returns. Further, the appellant had admittedly taken suo moto registration under Service tax provision. In the circumstances, there is no suppression or failure on the part of the appellant to make compliance under the service tax provisions. Rather revenue have chosen to not make any enquiry for the period prior to 01/10/2016, soon after taking of registration in November 2016. Thus, allegation of revenue that appellant have concealed its particulars of turnover from service tax department, and revenue came to know upon receipt of information only in 2019 on the basis of data received from the Income Tax Department is vague and frivolous. Thus, the show cause notice is bad for invocation of extended period of limitation. Further, during the period under dispute, almost the whole turnover for providing service is in respect to work done in packing plant-maintenance job for Shree Cement Ltd- manufacturer of cement. Admittedly, service has been provided inside the factory premises by providing JCB - the appellant was to provide competent operating staff to operate the JCB. Further, the JCB was to be operated as per the guidance and instructions of the engineer of the service recipient. Further, the appellant have received the hire charges for JCB, through bank and have also maintained proper records. Also Clause (f) of Section 66D provides that services by way of carrying out any process amounting to manufacture or production of goods, falls under the negative list and is exempted from the levy of service tax. The classification of service under Works Contract Service by the Commissioner (Appeals) is beyond the scope of show cause notice, and is held to be bad. Appeal allowed - decided in favor of appellant.
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